Larry Downes' Favorite Techdirt Posts Of The Week

from the laws-of-disruption dept

I wish I could say it was by brilliant design instead of happy coincidence, but I spent the ten days
before the election in the U.K. (I had the great pleasure there to meet Techdirt contributor Glyn
Moody at the cafe in the National Gallery on Trafalgar Square--perfect coffee and excellent
cakes, but that's true of nearly everywhere in London).

I returned to Washington on Election Day to find a ghost town; anyone who wasn't out on the
campaign trail was hunkered down somewhere, or just hiding. Would that it were always so.

Like every other American of every political persuasion, I was long-past exhaustion with the
2012 campaign, which lacked any substance on any subject, not least of all on tech policy.

Innovation, especially in information technology, is just about the only engine of economic
growth we have left in the U.S., and you'd think that an election that pretended to be so focused
on fixing the economy would said at least something about what government could do to
encourage entrepreneurship.

But no, instead we got, well, you can fill in your own most cringe-worthy sound bites from the
campaign. (The week in London featured enough good wine to kill just the right brain cells,
thankfully. I can't actually remember much of the last few months.)

I tried in my own small way to raise the issue in an op-ed I sweated over for the better part of a
week. Despite supportive words from former Wall Street Journal publisher Gordon Crovitz, I
got no response from either the Washington Post or the New York Times.

What I wished the candidates from President on down to the local Police Protection and
Community Services District in my very small, unincorporated town in the Berkeley Hills
(where, I’m happy to report, my least favorite neighbor got the fewest votes) had spent at least a
moment on was to acknowledge the ways in which the application of industrial-age laws
and regulations to information products, services, and enterprises get in the way--even when they
aren't trying to. Often, in fact, especially when they aren't trying to.

As the pace of technological change continues to accelerate, thanks to Moore’s Law and its
complements, the pace of legal change falls further and further behind. Technology is disruptive
and growing moreso. Traditional law is slow and deliberate by design.

So when it comes to traditional forms of government, the real governing law for technology,
increasingly, is the law of unintended consequences. We see it every day here on the front lines
of the Internet economy: counter-productive extensions to copyright and patent; immigration
policies that send non-U.S. engineers home to compete against us just as they've finished their
educations in American entrepreneurship; a tax code that forces U.S. companies to invest their
foreign earnings anywhere but in the U.S.; and the FCC's century-old approach to spectrum
management that still imagines a world in which every device needs its own separate network
and where new usable frequencies are always available.

Just to name a few.

Had the candidates been reading my favorite Techdirt posts from last week instead of tweaking
their stump speeches, they would have gotten a flavor for the kind of dangerous and costly
absurdities I'm referring to:

Criminal Procedure -- The FBI and other intelligence-gathering agencies have long-complained that new technologies challenge their ability to keep up with criminals and
now terrorists. When Congress doesn't expand their authority to further undermine the
Fourth Amendment fast enough, they just improvise, and then stonewall efforts from
those, such as the Electronic Frontier Foundation, to find out what they’re actually doing.
Without transparency, we have tyranny, even if benevolent.

Patents -- Whatever the value of granting limited monopolies to inventors to incentivize
invention was during the Industrial Revolution, it should now be clear to everyone that
in fast-paced, dynamic markets for information technology products and services, twenty
years or so of exclusive rights to new innovations is far too long. Especially when patent
offices worldwide seem to think every tweak counts as an innovation. (That is clear,
by the way, to every company in Silicon Valley, including those who are sometimes
beneficiaries of that system.)

Congress took nearly a decade to pass a patent reform bill that included no real reforms.
So, as has often historically been the case, the judiciary is stepping in to try at least to
keep the madness to a minimum. My former boss Richard Posner paved the way in
dismissing part of the Motorola/Apple smartphone war with extreme prejudice (not a
legal term). Now, as Mike reports, another judge has picked up the banner and run with
it. Patent litigants beware: compete in the market, not in the courts.

Copyright -- At a conference in Charleston this week, I argued that the true disruption
of the information revolution was to separate information from physical media, turning
on its head Marshall McLuhan's cryptic comment that "the medium is the message."
Content industries organized their supply chains around expensive physical assets
necessary to produce and distribute the media, with little regard for the creative
information that goes into it. It's newspapers, not news, and records, not music.

The Internet is dismantling those supply chains, leaving incumbents unclear, at best, on
what it is they actually add to the value of creative content. The last stages of industry
transformation, I said, are always desperate efforts to create hybrids of the old technology
with the new and, finally, litigating everything that moves.

Most of the former "mass media" industries are now entering the end game for their long-stranding, cartel-like supply chains, and the flailing is in full view--to everyone except
our elected officials, who dutifully respond to concerns about "piracy" and "theft" by
extending when they should be shortening copyright duration, and adding when they
should be subtracting from criminal and civil penalties.

Historically, this resistance is inevitable if pointless--a new and better supply chain
always emerges, and those who added real value in the old one always find a more
profitable place in the new. Mike's story about Harry Fox's determined efforts to force
licensing fees from a Thai youth orchestra for performance of a public domain work
by Johann Strauss nicely captures the sad state-of-the-art here. As Marx paraphrased
Goethe, history always repeats itself, first as tragedy and then as farce.

Patents, Take Two -- As I said, sometimes the patent bullies are also the patent victims.
While I don't share Mike's complete disdain for patent trolls (sometimes they do resolve
market problems that can't otherwise be fixed), litigation remains an expensive form of
resolution and one that is often the victim of what economists call regulatory capture,
where the institution (here the notorious federal district court in East Texas) becomes
dangerously aligned with those it's supposed to oversee.

Mike teases out the ugly details in a post on jury trials that went against Apple and
Google, respectively. By the way, to anyone who thinks lay juries are appropriate fact-finders for patent infringement cases, please get in touch. I have a virtual bridge I'd like
to talk to you about.

Internet "Governance" -- One issue that never came up in campaign 2012 was the
insidious effort by the U.N.'s International Telecommunications Union and repressive
client governments around the world to insert themselves into the highly-functional,
engineering-driven approach to governance that has led to the total victory of open IP
protocols over any other networking standard they've encountered. That may be because,
as far as I could tell, there wasn't a single person in the U.S. who thought giving the ITU
more power through an upcoming rewrite of the relevant treaty was a good idea.

As with SOPA and PIPA, the best evidence that the government entity proposing itself
to solve a problem that doesn't exist would instead be the worst possible change agent
in the first place comes from the entity itself. Caught off-guard by worldwide scorn,
the 150 year-old ITU has responded with the most pathetic P.R. campaign since, well,
since SOPA and PIPA. Every speech, statement, and "Twitter storm" ITU Secretary-General Hamadoun Toure lowers himself to participate in has the opposite effect to
its intent, making clear that the ITU doesn't even know what the Internet is, let alone
what "governance" problems can't be solved without the help of the U.N.

The best/worst example came this week in an op-ed piece Toure wrote for Wired.com,
which, as Mike rightly points out, is infested with wishful thinking, deception, and
an uncanny ability to talk down to Internet users as if they were infants in hopes of
impressing them with Toure's vast wisdom as a seasoned bureaucrat. Why, says the
Secretary-General, our secret treaty negotiations are even open to your participation on
our website. What he doesn't mention is that even that pathetic crumb requires users
first to register, provide lots of private information, and agree to terms of service more
restrictive than the iTunes Store.

Everyone sees the Would-be-Emperor's nudity here, except of course for the ITU.
The readers of Wired (are there still readers of Wired?) duly tore Toure apart in the
comments. No matter, he won't read them.

I'm out of time, but I've only skimmed the surface--and that's just what was on Techdirt,
admittedly the best source for tech policy horrors. Honorable mention to Tim Cushing, however,
for his piece on India's struggle--and failure--to find the "balance" between freedom of speech
and individual rights to protect their reputations through defamation law (and, more often, the
needs of law enforcement to protect public safety).

There's no balance. Either you have freedom of speech or you don't. Either you trust in the
marketplace of ideas or you don't have one. Mark Twain once said that "A lie can travel
halfway around the world while the truth is putting on its shoes." But that was before the
Internet. Now both can travel all the way around the world without needing shoes, and do so
instantly. The medium is not the message.

In the end, maybe it's not such a bad thing that politicians ignore technology policy. True,
the old laws are causing plenty of mischief. But efforts to correct them often just make things
worse.

In the few months before campaign 2016 begins, maybe we can get Google to take Silicon
Valley off all of its maps. Or better yet, convince politicians to switch to Apple maps.

On humble companies

First, great article! I enjoyed reading it. Maybe TechDirt can double the hits on it?

I don't have the context of Julie Brill's comment, but humility in itself is not a bad thing for a company to have. Some of the companies I worked for had a goal to be a good corporate neighbor to the communities they were in. Given that Brill is with the FTC, I doubt she was thinking of anything so benign.

But your comments on Microsoft miss the mark. Even though Microsoft is technologically irrelevant, they still control what OSs go on new computers, which is why I have only bought one (1) new computer since 1997. I can afford the mass market computers, but not he custom built ones that will load Linux for me.

Beside this, Microsoft is a technological has-been with $50 billion in the bank. They can do a lot of damage with that money. Just look at the UEFI developments, the patent offensive against Android, the obvious influence-buying in Washington, and you can see some of the results of that $50 billion being spread around. It is the same effect that the **AAs have. They have never created anything, yet they have control of our cultural heritage and the money to make things stick their way.

Don't discount important influences just because they are technologically irrelevant.

my favorite paragraph

There's no balance. Either you have freedom of speech or you don't. Either you trust in the marketplace of ideas or you don't have one. Mark Twain once said that "A lie can travel halfway around the world while the truth is putting on its shoes." But that was before the Internet. Now both can travel all the way around the world without needing shoes, and do so instantly. The medium is not the message.